The inability to independently solve serious financial problems, unprofitability of production, debt to creditors or banks and a number of other reasons can lead an organization to bankruptcy - a legal way out of a difficult situation with a minimum of losses. The consequence of bankruptcy proceedings, as a rule, may be the dismissal of all or part of the staff. An important condition for preserving the interests of the parties when carrying out measures related to bankruptcy is knowledge and unconditional adherence to the rules of law.
Notifying employees of dismissal
The basis for dismissal is the liquidation of the organization, which begins in connection with its declaration of bankruptcy. As a rule, in case of bankruptcy, bankruptcy proceedings begin, within which a bankruptcy trustee is appointed. He is responsible for notifying employees of the upcoming termination of employment contracts. Notifications are sent within one month from the start of bankruptcy proceedings.
Reference! Art. 180 of the Labor Code of the Russian Federation obliges the employer to maintain the employee’s workplace for 2 months after delivery of the notice.
The notice is given to the employee personally, on paper, indicating the reason for dismissal - liquidation of the organization. The employee must read and sign.
If there is a trade union in the liquidated organization, the head of the bankrupt enterprise is obliged to negotiate with the leadership of the trade union to ensure measures are taken to protect the interests of all employees and to prevent violations of their rights.
Notifying union employees has its own characteristics.
The difference from the notification to the main staff is that employees who are members of a trade union are informed a maximum of three months before dismissal.
Grounds for dismissal in bankruptcy
In relation to employees, bankruptcy is not a reason for dismissal:
- there is no such basis in the Labor Code of the Russian Federation;
- three out of four bankruptcy procedures are aimed at restoring the solvency of the enterprise (supervision, financial recovery, external management); during the period of their implementation, employees cannot be fired with reference to liquidation;
- employees are fired due to the liquidation of the organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation), which ends only the fourth procedure - bankruptcy proceedings.
An additional basis for the dismissal of a manager is his removal from office as part of bankruptcy procedures (clause 1, part 1, article 278 of the Labor Code of the Russian Federation, clause 2, article 126 of the Law of October 26, 2002 No. 127-FZ).
Liquidation of a company and its exclusion from the Unified State Register of Legal Entities occurs only after the court has issued a ruling on the completion of bankruptcy proceedings (clause 3 of article 149 of Law No. 127-FZ, clause 28 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2, art. 61 of the Civil Code of the Russian Federation) .
In practice, bankruptcy trustees, in order to save money, fire staff before the end of bankruptcy proceedings, and judges’ opinions on this matter vary:
- some take the side of the employees: they are reinstated at work, the dismissal is carried out at a later date (Appeal ruling of the Moscow City Court dated January 18, 2016 No. 33-956/2016, Determination of the Supreme Court of the Russian Federation dated July 11, 2008 No. 10-B08-2);
- others believe that dismissal in connection with liquidation should not occur exclusively at the final stage of liquidation (Appeal ruling of the Rostov Regional Court dated November 16, 2015 No. 33-17725/2015, Appeal ruling of the Investigative Committee for civil cases of the St. Petersburg City Court dated July 31, 2018 to case No. 33-14493/2018).
As a result, bankruptcy makes it possible to dismiss employees on the following grounds:
- at your own request (clause 3, part 1, article 77 of the Labor Code of the Russian Federation);
- by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);
- on reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation, clause 3, article 129 of Law No. 127-FZ);
- in connection with liquidation (clause 1, part 1, article 81 of the Labor Code of the Russian Federation), if bankruptcy proceedings have begun.
Let’s take a closer look at the last two options, since they have nothing to do with the employees’ desire to quit.
Cash compensation for employees
The types of payments upon liquidation are regulated by the Labor Code in Article 178, namely, the employee receives the following amounts:
- severance pay (equal to the average monthly salary);
- payment of benefits in the amount of average earnings for two months after dismissal (it is assumed that the employer supports the employee during the period of searching for a new job).
All specified payments are credited to the employee’s account in a single amount on the last working day. In addition, there is the opportunity to receive another payment, also in the amount of the average monthly salary. The conditions for receiving it are as follows:
- registration with the employment service within two weeks from the date of termination of the employment contract with the bankrupt employer;
- absence of fact of employment at a new place of work within 2 months after dismissal.
In total, an employee of a liquidated company will receive 3 or 4 times his average monthly salary. In addition, on the last day of work the following are subject to payment: compensation for unused vacation days and bonus payments (if provided).
Regulations
The conditions under which a company is declared insolvent and bankruptcy proceedings are possible are established by law:
- Civil Code of the Russian Federation (Article 65);
- Federal Law-127 dated October 26, 2002 (Articles 3, 4).
Article 4 of Federal Law No. 127 also determines the procedure for fulfilling requirements relating to the payment of benefits and other accruals to the personnel of a bankrupt organization.
Important
The basic document regulating the relations of the parties upon dismissal in a bankruptcy situation is the Labor Code of the Russian Federation (Article 81).
Measures to promote the employment of released labor resources by trade unions are determined by Article 12 of the Federal Law No. 10 of January 12, 1996.
How to fire a woman on maternity leave
Pregnant women and employees on maternity leave, as well as child care leave, do not have any privileges during liquidation. Employment contracts with them are terminated in accordance with the general procedure. The only difference is that such employees, in addition to the basic payments, are entitled to benefits for a child up to one and a half years old.
Important! Even if a woman does not plan to go to work, after dismissal due to layoff due to the liquidation of the enterprise, she is obliged to contact the Employment Center and register. In addition, you need to independently notify the Social Insurance Fund in order to receive further payments for the child.
In addition to women on maternity leave, the category of employees who cannot be fired according to general rules, but can be dismissed in the event of a massive layoff, includes: employees on sick leave and employees on annual leave.
Let's sum it up
- Bankruptcy is not a reason for dismissing staff, since the procedure does not always end with the liquidation of the enterprise.
- As a result of removal from office, the head of a bankrupt company may be dismissed.
- Liquidation of an organization is carried out at the stage of bankruptcy proceedings. Only within its framework can employees be dismissed on appropriate grounds. At the same time, judicial practice develops in favor of the bankrupt only if the employees are fired closer to the final stage of bankruptcy proceedings.
- Other bankruptcy procedures allow dismissal: at will, by agreement of the parties, or due to staff reduction.
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Arbitrage practice
The opinions of the courts on the issue of the moment of dismissal of employees are ambiguous. The following positions of the court take place: Position 1 If an organization is declared bankrupt and therefore initiates liquidation, this does not mean that it will definitely cease its activities. Therefore, the dismissal of employees is unlawful. Position 2 From the moment the decision on liquidation is made until its actual completion, a number of measures are carried out, which include the termination of labor relations with employees. That is, if the organization is already liquidated and excluded from the register of legal entities, then it will no longer be possible to carry out the dismissal procedure.
Enrollment in labor
The work book is an important document in recording labor relations, and its completion must be approached very responsibly. Upon dismissal, the reason for which was bankruptcy, the following is entered in the work book columns:
- The serial number of the record using the continuous numbering method.
- Date of entry in digital format: day and month in two digits, year in four, without the word “year” or its abbreviation “g.”
- Record of the reason, for example:
“Dismissed due to the liquidation of the organization, paragraph 1 of part one of Article 81 of the Labor Code of the Russian Federation.” - Reason for dismissal: date (in digital format) and order number.
The position of the personnel officer is indicated under the entry and his signature is placed.
Timing and place of workers in the queue for payments
The legislation provides for the existence of groups of workers who belong to a special category. Its exclusive rights are ensured by social expediency. If a certain category of citizens is considered the most vulnerable, then such people will receive severance pay first. According to the current rules, these include:
- pregnant employees, employees on maternity and child care leave;
- minors, if they were on staff or among temporary employees;
- single parents raising children without a second family member;
All other employees of the company fall into the general queue, and the remaining money is divided between them in equal shares, regardless of their other individual characteristics, such as length of service, lack of penalties, etc. However, the general queue is divided into sub-queues, and payments are made in the order of repayment of two types of debt - current and registered.
Information
The date the debt arose plays a big role. The earlier the debt was incurred, the faster it must be repaid. For example, if there are people who were fired before the bankruptcy procedure began, then wage debts to them will be paid before the rights of those who were still employees at the time the liquidation of the enterprise began.
The entire workforce, regardless of the characteristics of the employees, is notified of the upcoming dismissal no later than 2 months. The only exceptions are temporary and seasonal workers. The former are notified of the upcoming termination of the employment contract one week before the dismissal, and the latter - three days before it. This is no different from the general procedure for their dismissal.
In addition to the employees themselves, the external manager is also obliged to notify the trade union organization, as well as the regional employment center. Unions receive three months' notice before the first layoff. The deadline for notifying the employment center depends on the number of employees. If there are more than 15, then the information should arrive three months before the start of layoffs, and if less, two months before.
When should compensation be paid?
Severance pay upon liquidation of an organization is paid on the day of dismissal, and if the employee did not work on that day, then no later than the next day after he submits a request for payment. “Compensation” for the 2nd month and 3rd month after dismissal is issued subject to certain conditions (Article 178 of the Labor Code of the Russian Federation). To receive this money, you need to submit a written application to your former employer. For more information about severance pay, see “How, according to the new rules, to pay compensation when reducing staff or liquidating a company.”
The types and amounts of payments made to an employee upon dismissal in connection with the termination of the activities of an individual entrepreneur are determined in the employment contract with the employee.
Calculate all payments for a dismissed employee in the web service Calculate for free
What to do if they don't pay
Unfortunately, the legislation does not provide that payments must occur without fail. The fact is that bankruptcy is most often associated with situations where a company has accumulated a large number of debts to external creditors, the company’s partners, its clients and employees. Sometimes bankrupt companies have wage arrears exceeding 5-6 months.
Information
Most often, this is due not simply to the greed of the management, but to the lack of funds in the accounts. The available liquid assets are not always enough to cover debts of various levels. Therefore, you should not think that if you have to pay, you will certainly pay.
In order for the labor collective to have the opportunity to enter into negotiations with the arbitration manager, it must elect its authorized representative. This is done at a general meeting of the labor collective. The external manager is obliged to communicate with him, show available documentation and take his opinion into account when creating a payment schedule.
Initiation of insolvency proceedings for an LLC
If the owner of an LLC understands that his company cannot pay off its obligations, he has the right to initiate insolvency proceedings in an arbitration court. Also, the right to demand that an organization be declared insolvent is given to a labor collective or an individual. For such an initiative of workers, it is necessary to comply with a number of rules and conditions that must appear simultaneously:
- delay in payment of wages by the employer for a period of three or more months;
- The LLC's debt to the team amounts to more than 300 thousand rubles, including all benefits, as well as other funds.
You need to understand that the beginning of the insolvency procedure does not mean the exact liquidation of the enterprise, since it is necessary to go through two stages of production: the stage of external management, financial rehabilitation, in order to try to restore the solvency of the legal entity. Thus, it is possible to bring the LLC out of the crisis and regain the ability to make payments.
